The niqab at the centre of a court hearing over whether a witness could wear such a garment while giving evidence in a Crown Court covered more than the face of defendant Rebekah Dawson – it also hid her identity from the readers of most newspapers.
But the media may have been showing an over-abundance of caution by not naming her. The Daily Telegraph seems to have been alone among the national press in in reporting her name in its coverage of the niqab issue.
Dawson, 22, had asked to be allowed to wear the full-face veil during her coming trial on a charge of witness intimidation, and also wanted to keep it on while giving evidence, saying it was against her religious beliefs to show her face in public.
Judge Peter Murphy, sitting at Blackfriars Crown Court, ruled on Monday that while she could wear the niqab during the trial it had to come off when she testified, as it was “crucial” for jurors to be able to see a defendant’s face when she or he gives evidence (the ruling can be found here [pdf]).
Dawson, who was referred to in court as “D”, had previously been named in reports of the proceedings. Last week she pleaded not guilty plea to a charge of intimidation.
Orders under section 4 (2) of the Contempt of Court Act 1981 are in force postponing reporting of Dawson’s address and other information.
But there is no ban on naming her.
Some media outlets which left Dawson’s name out of reports of the niqab issue possibly they took the view that naming her in that coverage would breach the strict liability rule by creating the risk of a substantially prejudicial effect on jurors when she comes up for trial for alleged witness intimidation.
Dawson is also concerned in other proceedings.
But the Daily Telegraph appears to have taken the view that, although Judge Murphy referred to her as D in his decision on the niqab issue, she could be named because there was in fact no order in force to say that she could not.
As she has already been identified in open court in relation to the case, an order under section 11 of the Contempt of Court Act 1981 banning publication of her name could not now have been validly made, while an order under section 4 (2) of the same Act banning use of her name would be open to challenge as not being necessary in the interests of the administration of justice.
The judge could have made an order under section 4 (2) postponing publication of any reports about the niqab issue until after Dawson’s trial. But he did not do so – a clear indication that he did not take the view that publication of these reports would bring with it a serious risk of substantial prejudice to her trial on the intimidation charge.
There is, in fact, no bar to naming Dawson.
Section 4 (1) of the Contempt of Court Act 1981 says that it is not a contempt to publish, in good faith, a fair and accurate contemporaneous report of proceedings which take place in open court.
Apart from anything else, the fact that she will be in the dock wearing a niqab will almost certainly give the game away to the jury.
The argument about the niqab was also not about whether evidence was admissible or not, or about any issue relating to the question of Dawson’s innocence or guilt, but about whether her religious beliefs justified a major departure from the well-established principle that jurors must be able to see a witness testify so that they can make their own judgment about that person.
It is also interesting to note that neither the judge nor the Attorney General has thus far made any protest or comment about the fact that Dawson was named in some reports.
The judge described the niqab issue as the elephant in the courtroom.
But there is another elephant in this rather crowded courtroom – the question of whether other reporting restrictions would have applied.
This would have been a pre-trial hearing, covered by restrictions under the Criminal Procedure and Investigations Act 1996.
The Act defines a pre-trial hearing as one which is held after the defendant has been committed to Crown Court for trial but before the start of the actual trial, which itself is defined as being when the jury is sworn in, or when the defendant pleads guilty and the court accepts that plea.
The only restrictions on reporting a pre-trial hearing are that one cannot report rulings made by the judge on the admissibility of evidence, or other questions of law, or on applications for rulings to be made, varied or discharged.
The question is: Was this an application for a ruling to be made, varied or discharged? On balance, the answer should be no – the question of whether Dawson could wear a niqab while testifying was more an issue of procedure rather than a question of law.
In addition, the niqab issue is of such importance for open justice and a matter of such public interest (in the purest sense of the term) that it would not have been justifiable to attempt to delay or restrict reporting.
One wonders, however, whether another factor came into play in editorial and legal departments considering whether Dawson should be named.
Did any of them recall that the Attorney General, Dominic Grieve QC, has brought more actions for contempt against media organisations than his predecessors did in the previous 10 years? And did they have in mind his oft-stated determination to ensure that the media abide by the strict liability rule enshrined in the Contempt of Court Act 1981?
The media’s apparent self-censorship in this case might have been an unintended consequence of Mr Grieve’s approach, demonstrating that it really is having a chilling effect on freedom of expression and the media’s right to report what happens in court.
Mike Dodd is the Editor of Media Lawyer.